Volunteers are not employees
If you are a charitable organisation, there is a very good chance that you are making use of volunteers. It makes sense – volunteers can provide invaluable support to those for whom they work; indeed, many charities could not function without them.
However, have you stopped to consider your legal obligations towards them? What do you as a business need to do in order to make sure that you are not unwittingly breaking employment law and regulations?
How might that happen?
Some organisations might, through a badly worded volunteer agreement, inadvertently create an employment contract with their volunteers. If a volunteer is inadvertently turned into an employee or a worker, they could acquire entitlements such as:
health & safety protection legislation;
statutory sick pay;
protection against unfair dismissal and unfair redundancy.
trade union activity,
the national minimum wage.
protection from unlawful discrimination across equality grounds
That last entitlement can make things difficult for charitable organisations because they can then find themselves being investigated or taken to an employment tribunal if a volunteer feels that they have been discriminated against or treated unfairly.
With compensation awards for discrimination sometimes running into tens of thousands of pounds, the volunteer/employee distinction is a crucial matter and one that charitable organisations need to get sorted out as soon as possible.
What is the definition of a volunteer?
Put simply, a volunteer or ‘voluntary worker’ is someone who works for a charity or voluntary organisation without receiving payment (other than of their expenses) or any other benefit apart from reasonable subsistence or accommodation.
What’s the difference between a volunteer and an employee?
The simplest way to determine this is to look at what conditions need to be met in order for an ‘employee role’ to exist.
An individual is an employee or worker if they have a contract of employment. This does not have to be written down in order to exist as a contract. It sets out and defines the relationship between the employee and the organisation for whom they work.
There are two legal requirements that need to be in place for a contract to exist: consideration (whereby the employee and the employer exchange something of material value – work and salary) and ‘intention’ (that the employer and employee intend to enter into a legally binding contract).
There may not be a specific intention to create a legally binding contract; it could just be implied by the circumstances of the employee/employer relationship. Put simply, if it looks and feels like a binding agreement, then it probably will be treated as one by the courts, regardless of whether a formal decision was made to establish it thus.
A volunteer agreement is a document that sets out the relationship between a volunteer and the organisation for whom they work. It acts as a reference point for the volunteer and a reminder to the organisation of the standards that it should be meeting in all its dealings with volunteer workers.
A written agreement is not mandatory and there are organisations which get by fine without them. However, many will want to formalise the relationship in case of later disagreements or disputes.
Mind your language
This means that charitable organisations should be very careful to avoid the sort of terminology that would infer a binding contract, or any suggestion that the volunteer is under any sort of obligation to carry out duties associated with their role. Alternative wording that does not imply an employment relationship should be used wherever possible; for example:
‘Volunteer agreement’ rather than ‘contract’
‘Volunteer role description’ instead of ‘job description’
‘Reimbursement’ not ‘payment’
‘Arrangements if there are problems’ rather than ‘disciplinary procedures’
‘Arrangements if you have a complaint’ instead of ‘grievance procedure’
Procedures that would normally be associated with a paid employee, such as the use of forms for holiday booking or sickness/absence, should also be avoided.
Instead, emphasis should be placed on the expectations that the organisation would have for its volunteers, that they are free to come and go as they wish and that no obligations are created by the relationship between them and the organisation.
For some organisations, training volunteers is important as it equips them with the skills they need to carry out their work more efficiently. Training can normally be provided by the organisation but they should take care that it is relevant to the role that the volunteer plays and that it is open to all volunteers who carry out that particular role. If it goes beyond what is necessary for the role, it could be held to be a benefit in kind, which could affect employment status.